Rebuttal Evidence--Right to rebuttal cannot be exercised unless the onus of an issue is upon other party and the party beginning reserved the right before the evidence of other party is commenced.

Mr. Permod Kohli, J.: - This revision is directed against the order dated 10.02.2011 passed by the learned Additional Civil Judge (Senior Division), Narwana, whereby an oral request of the plaintiff for rebuttal evidence has been allowed.

2. The plaintiff-respondent herein filed a suit for recovery of Rs.38,00,000/- on the basis of an agreement, in the Court of learned Additional Civil Judge (Senior Division), Narwana. The defendants petitioners herein, filed written statement of defence and trial of the suit commenced. The plaintiff was allowed to lead evidence which he did. On conclusion of evidence of the plaintiff, the defendants were allowed to lead their evidence. Defendants also concluded their evidence. It was at this stage that the plaintiff made an oral request to the learned trial Court on 04.02.2011 for leave to produce the evidence of expert in rebuttal to prove the signatures of defendant No.1, Aman Kumar (now deceased) on the agreement to sell dated 21.02.2006 (Annexure P-2).

3. This prayer was resisted by the defendants on the grounds that the defendants denied the execution of the agreement in their written statement and, thus, it was obligatory upon the plaintiff to have proved the agreement by leading affirmative evidence which, inter alia, includes evidence of expert. It was further pleaded that the parties have already led evidence and it will have no occasion to rebut the evidence of the plaintiff if permission is granted at this belated stage. The learned trial Court, however, vide the impugned order allowed the oral request of the plaintiff to grant relief to lead evidence in rebuttal by observing that the plaintiff shall compensate the opposite side by costs of Rs.500/-. Thus, by awarding a cost of Rs.500/- to the defendants, plaintiff-respondent herein, has been allowed to lead evidence in rebuttal.

4. I have heard the learned counsel for the parties at length.

5. During the course of hearing, learned counsel for the plaintiff produced a copy of the order dated 24.05.2008, whereby the trial Court framed the following issues in the case:-

“1. Whether there was an agreement dated 30.12.2005 for valuable consideration between the parties? OPP

2. Whether plaintiff has been ready and willing to perform his part of contract? OPP

3. Whether plaintiff is entitled to the decree of possession by way of specific performance of contract? OPP

4. Whether present suit is not maintainable? OPD

5. Whether the plaintiff has no locus standi to file the present suit? OPD

6. Relief.”

6. Right to lead rebuttal evidence is envisaged under Order 18 Rule 3 of the Code of Civil Procedure which reads as under:-

“3. Evidence where several issues:- Where there are several issues the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.”

7. From the perusal of the above provision, it appears that where there are several issues and burden to prove the issues lies on the other party, the party beginning has the option to produce his evidence on those issues, or reserve it by way of answer to the evidence produced by the other party. In such an eventuality, the party beginning may produce evidence on those issues after other party has produced all his evidence. In other words, the right of rebuttal i.e. in answer to the evidence of other side is available to the party beginning where the onus of some issues is on other party and the other party has led evidence on such issues.

8. In the present case, from the perusal of the issues framed in the case, it a